Bombay High Court
Shantaram Vishnu Salaskar And Anr vs Vishwas Balkrishna Marchande And Anr on 18 July, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:30031
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7763 OF 2021
Shantaram Vishnu Salaskar and Anr. ... Petitioners
versus
Vishwas Balkrishna Marchande ... Respondent
Mr. Rakeshkumar Tiwari, for Petitioners.
Mr. Sandeep V. Mahadik, for Respondent.
CORAM: N.J.JAMADAR, J.
DATE : 18 JULY 2025
P.C.
1. Heard the learned Counsel for the parties.
2. The Petitioners - Defendant Nos.2 and 3 assail the legality, propriety and correctness of the order dated 23 September 2019 passed by the Appellate Bench of the Court of Small Causes in Revision Application No.128 of 2019, whereby the revision preferred by the Petitioners came to be dismissed affirming the order passed by the learned Judge, Court of Small Causes on an application for amendment in the written statement (Exh.62) in RAE Suit No.357 of 2011, thereby rejecting the said application.
3. Respondent No.1 has instituted a suit for recovery of possession of the premises bearing No.55/2/2 situated at CTS No.334, Marchande, Talaopakhadi, Andheri (E), Mumbai (the suit premises) and arrears of rent and mense profit on statutory grounds. Defendant Nos.2 and 3 filed written SSP 1/6 3 wp 7763 of 2021.doc statement and resisted the suit.
4. Trial Commenced. After the closure of the evidence of the Plaintiff, and the cross-examination of Defendant No.1 (Respondent No.1 herein), the Petitioners filed an application for amendment in the written statement contending, inter alia, that the Competent Authority has published a public notice on 29 August 2016 that the Airport Authority is the owner of the premises indicated in the said public notice, including CTS No.154A, Talaopakhadi, Road No.3, and the occupants of the said premises have erected unauthorized structures thereon and the Competent Authority would carry out a survey on the dates indicated in the said notice. Defendant Nos.2 and 3 contend that the suit for eviction would not be maintainable under the Maharashtra Rent Control Act, 1999 as the Airport Authority is the owner of the suit premises. Similarly, the bar under Section 22 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment ) Act, 1971, would also come into play. Therefore, the Defendants be permitted to amend the written statement to incorporate the said grounds of defence.
5. Learned Judge of the Court of Small Causes was persuaded to reject the application as Defendant Nos.2 and 3 did not satisfy the test of due diligence, envisaged by the proviso to Order VI Rule 17, and, there was no material to show that the suit premises formed part of the area belonging to the Airport Autority and declared as slum.
SSP 2/6
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6. Being aggrieved, the Petitioners invoked the revisional jurisdiction. By the impugned judgment and order dated 23 September 2019, the Appellate Bench of the Court of Small Causes found no infirmity in the order passed by the Trial Judge. Being further aggrieved, the Petitioners - Defendant Nos.2 and 3 have invoked the writ jurisdiction.
7. Mr. Tiwari, learned Counsel for the Petitioners, would submit that the Courts below have committed a grave error in law in entering into the merits of the matter at the stage of consideration of the application for amendment in the written statement. Whether Defendant Nos.2 and 3 succeed in establishing that the suit premises has been converted into Gat No.145A would be a matter for adjudication at the trial. Therefore, Defendant Nos.2 and 3 must get an opportunity to plead and prove the said defences.
8. I have given careful consideration to the submissions canvassed across the bar and the material on record. At the outset, it is necessary to note that it is indisputable that the application for amendment in the written statement was filed after the commencement of the trial, nay, after completion of evidence on behalf of Defendant No.1 and filing of the affidavit in lieu of examination-in-chief on behalf of Defendant Nos.2 and 3. The last of the public notices was issued by the Competent Authority on 29 August 2016. The Application for amendment came to be filed in the year 2019. No effort was made by Defendant Nos.2 and 3 to satisfy the test of due diligence. SSP 3/6
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9. It is trite all amendments which are necessary for the determination of real questions in controversy between the parties shall be permitted to be carried out. However, the proviso to Order VI Rule 17 mandates that, after the commencement of trial, no application for amendment shall be allowed unless the Court comes to the conclusion that despite due diligence, the party seeking amendment could not have raised the matter before the commencement of the trial. The aforesaid satisfaction of the Court is construed to be a jurisdictional fact to confer jurisdiction upon the Court to permit amendment after the commencement of the trial (Vidyabai and Ors. V/s. Padmalatha and Anr.1.
10. In the case at hand, no endeavour was made on behalf of the Defendant Nos.2 and 3 to satisfy the jurisdictional fact. Therefore, the courts below were justified in declining to exercise the discretion to allow Defendant Nos.2 and 3 to amend the written statement.
11. In any event, the second ground of challenge to the prayer of amendment is even more formidable. The edifice of the submission on behalf of the Petitioners was sought to be built around the public notice dated 29 August 2016 issued by the Competent Authority. Evidently, the said public notice is in respect of Survey No.145A (Part).
12. It is interesting to note that the Plaintiff claims that CTS number of the 1 (2009) 2 SCC 409 SSP 4/6 3 wp 7763 of 2021.doc suit premises is 334. In contrast, the Defendant Nos.2 and 3 contend that the suit premises forms part of CTS No.423. There is not an iota of material to show that either of these survey numbers was amalgamated to form CTS No.145A. Prima facie, there is no material to show that the public notice issued by the Competent Authority pertains to the suit premises.
13. In these circumstances, the proposed amendment, if allowed, has the propensity to introduce the matter which prima facie has no relevance to the controversy at hand. It would also delay and embrace the trial. The entire defence by way of proposed amendment, revolves around either CTS No.334 or 423 being part of CTS No.145A. The Courts below found that there was no material to substantiate the said claim.
14. In the aforesaid view of the matter, though this Court is mindful of the fact that the application for amendment in the written statement is required to be considered more liberally as the element of prejudice is minimal, and, the Defendants are not debarred from taking inconsistent defences, yet, the proposed amendment does not seem to be necessary for the determination of the real question in controversy between the parties, and it has the potential to unjustifiably expand the scope of enquiry in the suit.
15. The prayer for amendment was justifiably rejected by the learned Judge and the Appellate Bench of the Court of Small Causes. Thus, no interference is warranted in exercise of the supervisory jurisdiction. SSP 5/6
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16. The Writ Petition, thus, stands dismissed.
( N.J.JAMADAR, J. ) SSP 6/6 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 19/07/2025 19:10:21